Work­place pro­to­cols re­de­fined

Kapi-Mana News - - OPINION -

Changes to the Em­ploy­ment Re­la­tions Act came into force this month. The main changes are to: Flex­i­ble work­ing ar­range­ments. Rest and meal breaks. Vul­ner­a­ble em­ploy­ees trans­fer­ring to a new em­ployer.

Pro­vi­sion of in­for­ma­tion dur­ing re­struc­tures and dis­ci­pline. Col­lec­tive bar­gain­ing. Time­frames for Em­ploy­ment Re­la­tions Author­ity de­ci­sions. Flex­i­ble work­ing ar­range­ments All em­ploy­ees can now re­quest flex­i­ble work­ing ar­range­ments (pre­vi­ously re­stricted to care­givers).

Re­quests can be made from the first day of em­ploy­ment ( pre­vi­ously not un­til em­ployed six months).

Em­ploy­ees can make un­lim­ited re­quests (pre­vi­ously one per year).

Em­ploy­ers must an­swer the re­quest within one month ( pre­vi­ously three months).

The em­ployer’s re­sponse must be in writ­ing and in­clude rea­sons for any re­fusal.

Re­fusals must be for good rea­son, such as in­abil­ity to re­or­gan­ise the work or hire other staff.

Rest and meal breaks

Th­ese can now be taken in a more flex­i­ble way, rather than at pre­scribed times for pre­scribed lengths.

Breaks can now be dealt with in em­ploy­ment agree­ments, but if agree­ment can­not be reached the em­ployer can spec­ify when breaks are to be taken.

Some em­ploy­ers will be ex­empt from giv­ing breaks if it is not prac­ti­cal to al­low breaks, or they agree to com­pen­sa­tion in­stead.

If breaks are not given, em­ploy­ers must give com­pen­sa­tion in­stead, such as pay or time off.

Rest breaks have to be paid, but not meal breaks.

Pi­lots and driv­ers must still have breaks un­der sep­a­rate leg­is­la­tion cov­er­ing their in­dus­tries.

It is un­law­ful to con­tract for no breaks and no com­pen­sa­tion and any em­ploy­ment agree­ment that did that would not be en­forced.

Vul­ner­a­ble em­ploy­ees trans­fer­ring to new em­ployer

A five work­ing day time­frame is now set for em­ploy­ees to elect to trans­fer to a new em­ployer in a re­struc­tur­ing, sale or loss of con­tract sit­u­a­tion when the em­ployee is in a vul­ner­a­ble oc­cu­pa­tion, such as cater­ing or clean­ing.

The pre­vi­ous em­ployer must give the new em­ployer in­for­ma­tion about each em­ployee who elects to trans­fer to the new em­ployer.

Hol­i­day and sick leave en­ti­tle­ments are ap­por­tioned if the par­ties can­not agree on who should pay what.

The old em­ployer pays all hol­i­day pay and the new em­ployer takes on all sick leave li­a­bil­i­ties.

New em­ploy­ers are pro­tected from the pre­vi­ous em­ployer grant­ing in­creased benefits, such as higher pay and hol­i­days, to trans­fer­ring em­ploy­ees just be­fore the trans­fer.

Un­der the pre­vi­ous law this could be done and could sig­nif­i­cantly in­crease the new em­ployer’s costs and make the con­tracts just won un­eco­nomic.

Small and medium-sized em­ploy­ers will have ex­emp­tions from hav­ing to take on em­ploy­ees when they win a new con­tract. This ap­plies to em­ploy­ers with 19 or less em­ploy­ees.

Em­ploy­ers can­not split up their busi­ness into small lots and the 19-worker limit ap­plies to all as­so­ci­ated per­sons/en­ti­ties and in­cludes sub-con­trac­tors.

Pro­vi­sion of in­for­ma­tion dur­ing re­struc­tures and dis­ci­pline

Em­ploy­ers propos­ing a re­struc­ture or un­der­tak­ing a dis­ci­pline process must give the af­fected em­ploy­ees in­for­ma­tion about them­selves.

Em­ploy­ers do not have to give con­fi­den­tial in­for­ma­tion about an­other em­ployee if that would in­volve an un­rea­son­able dis­clo­sure of their in­for­ma­tion.

Em­ploy­ers are not re­quired to dis­close con­fi­den­tial in­for­ma­tion pro­tected by law.

Em­ploy­ees are en­ti­tled to know who is ac­cus­ing them of mis­con­duct, un­less there are good rea­sons to keep the in­for­ma­tion con­fi­den­tial, such as safety con­cerns for other em­ploy­ees. Col­lec­tive bar­gain­ing Par­ties do not now have to reach agree­ment on a col­lec­tive con­tract.

Em­ploy­ers do not have to agree to multi-em­ployer bar­gain­ing.

Em­ploy­ers no longer have to put non-union mem­bers on the col­lec­tive agree­ment for the first 30 days of their em­ploy­ment.

Pay can be re­duced pro­por­tion­ally for par­tial strikes.

Ad­vanced writ­ten no­tice of strikes and lock­outs is re­quired.

Em­ploy­ment Re­la­tions Author­ity de­ci­sions

At the end of each hear­ing the ERA must (if prac­ti­ca­ble) give an oral de­ci­sion and pro­vide it in writ­ing within one month, or give an oral in­di­ca­tion of the de­ci­sion with a writ­ten de­ci­sion within three months.

The ERA can re­serve its de­ci­sion if there are good rea­sons why it can­not give an oral de­ci­sion or in­di­ca­tion. A re­served de­ci­sion must be given within three months.

In ex­cep­tional cir­cum­stances, the chief of the author­ity can give an ex­ten­sion of time.

Col­umn cour­tesy of Rainey Collins Lawyers, phone 0800 733484. Email aknowsley@rain­ey­ if you have a legal in­quiry you would like dis­cussed in this col­umn.

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